Facts: Alien Lomeli-Mences was arrested on a state warrant. The feds promptly found him and slapped an ICE detainer on him in August ‘06. Id. at *1. Over a month later, he was convicted and sentenced on the state charges. Id.

The next year, he was charged by the feds with 8 USC § 1326 – being“found in” the U.S. in April 2007. Id.

Three criminal history points were added during the federal sentencing calculation, because Lomeli-Mences was serving the state sentence when he was “found in” the U.S. in April ‘07 (eleven months after the feds had really first found him, in August ‘06, and hit him with a detainer). Id. at *2.

Issue(s): Lomeli-Mences “argued that the district court incorrectly assessed three criminal history points pursuant to U.S.S.G. § 4A1.1(d) and (e), which allow for additions if the defendant committed the instant offense while under any criminal justice sentence or while imprisoned on such a sentence. Defendant claimed that he committed the instant offense on August 6, 2006, the date on which the immigration authorities lodged the detainer against him. Because he was not sentenced on the false imprisonment and false impersonation charges until September 2006, he argues, he was neither under a criminal justice sentence nor imprisoned for those offenses when he committed the instant offense.” Id. at *2.

Held:“When a defendant admits, in an enforceable plea agreement for a violation of 8 U.S.C. § 1326, to having been found in the United States on a specific date, that admission is binding as to the offense date, and the defendant may not later dispute its validity. In summary, having admitted to the April 23, 2007, date in both his written plea agreement and oral change of plea proceedings, Defendant cannot now argue that he was ‘found in’ the United States on a different date.” Id. at *5.

Of Note: This is a disappointing and troubling decision. First, the government manufactures the “found in” date in the charging document – and here, it is undisputed that ICE actually found Lomeli-Mences eleven months before the “found in” date charged in the Information. Why didn’t the feds just bring the alien over to federal court when they first found him? Because ICE maximizes jail time by waiting for the state sentence to run, thus depriving an alien of the opportunity to get concurrent state and federal time. See United States v. Sanchez-Rodriguez, 161 F.3d 556, 563-64 (9th Cir. 1998) (en banc). Note that N.D. Cal. judges have refused to let the feds have it both ways – delaying the transfer of the alien to federal court, then picking a late artificial “found in” date in the indictment to sweep-in the criminal history points from a state conviction.

Second, this opinion tolerates a flatly-inaccurate fact – the made-up, later, “found in” date – simply because it was thrown in a plea agreement by an AUSA. Query whether the parties could stipulate to a false fact in a plea agreement to reach a lower sentence? That plea agreement would likely get a cooler reception in the Ninth.

How to Use: What’s one to do? Plead open, admit an earlier “found in date” than is alleged in the charging document, and avoid the extra three criminal history points? Or grimace, accept a “fast-track” plea agreement that knocks-off four offense levels, and admit to a false“found in” date made up by the AUSA? Option two will always knock more months off of a sentence.

Nonetheless, this apparently obscure sentencing issue is unfairly adding a lot of jail time for a lot of folks. The bench, the Sentencing Commission, and the much-anticipated crop of new Obama U.S. Attorneys should take another look at this unfair charging practice in Section 1326 cases.

For Further Reading: At recent hearings at Stanford, the U.S. Sentencing Commission explained that for the first time immigration cases are the highest percentage of federal crimes prosecuted. See U.S. Sentencing Commission Preliminary Quarterly Date Report, Figure J, pdf available here.

Image of the Hon. Susan Graber from http://www.id.uscourts.gov/DistConf08/Photos/slidesTrudy%20Fouser%20Judge%20Graber%20&%20Judge%20Dale.html